Abortion Ad Snafu

How the City of Peterborough failed—ethically and legally—to prevent anti-abortion bus ads

Starting April 1, Peterborough Transit riders could be confronted with an uncomfortable message. “Abortion kills children,” says the ad, written in shattered big block letters. Next to it are three images: two showing a developing fetus, saying, “Growing… Growing…”, and then a streak of blood-like red, with the word “Gone.” (We’ve chosen to not include an image of the ad in this article, but you can see it here.)

Many find the message objectionable, upsetting, and disturbing. An informal group of advocates, with the support of the Abortion Rights Coalition of Canada (ARCC), has spent the better part of the year petitioning City Hall, staging protests, and sending letters to places of concern where the buses could go, including local schools (where the ads could be seen by children), the hospital (which performs abortions), Trent University, and Fleming College.

“Personally,” says Town Ward councillor Diane Therrien, “I find the ads to demonstrate a complete lack of situational awareness around the reasons that women might choose to terminate a pregnancy. The ads are meant to shock people, to make them feel shame. This is not the type of message that should be publically displayed…. Lack of access to birth control, poverty, abusive relationships—these are the issues that these groups should be focusing their efforts on.”

“Children will think that there’s someone out there killing people like them,” adds Casey Remy Summers, one of the local advocates. “Who are these people? Even if the children are told that it’s not killing, that it’s a health procedure, the trauma is already there.”

The ads come from the Canadian Centre for Bio-Ethical Reform (CCBR), an anti-abortion group who have made a name for themselves with their graphic imagery and shock tactics. They were the group responsible for sending postcards during the 2015 election with pictures of Justin Trudeau and other politicians next to aborted fetuses. They have also tried to buy space on city buses in cities across Canada—all of which have either been rejected, or approved and then removed following complaints.

So why are they being allowed on Peterborough’s buses?

The City of Peterborough originally denied CCBR’s request to purchase space for the ad on the back of buses, calling it “divisive” and “controversial.” But CCBR fought back, suing the City in February 2016. And instead of going to court, the City relented, stating, “The Supreme Court of Canada has consistently refused to take into account the content of the speech when ruling on cases under section 2(b) of the Charter [the right to freedom of expression], on the basis that controversial and even unpopular communications are often those most in need of protection.”

This is a common argument for anti-abortion advocates, but there are multiple problems with it. In Canada, the right to freedom of expression, like all Charter rights, is not absolute, but is limited by the Charter’s Section 1, which guarantees rights “only to such reasonable limits… as can be demonstrably justified in a free and democratic society.”

Particularly when it comes to the very public act of advertising, this clause has been used to place limits on free expression. In a 2009 case in Vancouver, for example, when transit authorities denied bus ads about cutbacks in the education system on the grounds that they were ‘political,’ the judge ruled in favour of the ads, but was very clear that “reasonable limits” could be placed on bus ads, “including limits on discriminatory content.”

ARCC has argued that, because the ads are exclusively directed at women who are performing a legal act, it also violates Charter protections against discrimination based on sex.

And then there’s the question of the Canadian Code of Advertising Standards, which is not a legal entity, but which the City of Peterborough (and most Canadian advertisers) use as a set of regulations. ARCC cites multiple sections of the Code which they believe the ad violates, but perhaps the most compelling is Section 1, Accuracy. The ad states, “Abortion kills children.” Under Canadian law, fetuses are not ‘children’ until they are born, and until that time are not persons and so cannot be ‘killed.’

Indeed, in 2008 and 2009, a bus ad from the same anti-abortion group which stated “9 months. The length of time an abortion is allowed in Canada. Abortion. Have we gone too far?” was removed in St. John’s, Hamilton, Sarnia, and Fredericton, on the grounds that the ad was upsetting to people, and also highly misleading (no abortions are performed in Canada after 24 weeks unless medically necessary).

Most recently, in a strikingly similar case in February 2017, CCBR took the City of Grand Prairie, Alberta to court over their rejection of the very same bus ad that will appear in Peterborough. Grand Prairie, unlike Peterborough, chose to fight it, and won, with the provincial judge stating that the ads could create “a hostile and uncomfortable environment.”

“I think this issue represents a failure of the legal department of the city of Peterborough.”

Peterborough’s city solicitor’s office has said the Grand Prairie decision won’t affect the Peterborough ads, but many have expressed displeasure at their actions throughout the fight. Joyce Arthur, executive director of ARCC, puts it plainly, “I think this issue represents a failure of the legal department of the city of Peterborough.”

Therrien agrees. “I do not believe the City did all it could. The City was ‘unrepresented’ at the Ontario Divisional Court, which is essentially a surrender. There are examples of other municipalities who have successfully fought this group, and others like it.”

In early February, City Council, led by Therrien and Dean Pappas, requested a report about it from the solicitor’s office about what happened, and how Council could strengthen its advertising policy to avoid “negative and harassing advertisements” on City property in the future. That report, expected at the Committee of the Whole meeting on March 27, will certainly ignite a new round of debates about these ads, and about how the City will respond to any future controversial advertisers that come knocking.

We reached out to the city solicitor’s office for their comments about their actions and about the legal arguments that ARCC has raised, but they declined to comment.

UPDATE: Peterborough Transit has announced that the ads will start appearing on two Peterborough Transit buses on April 1, and will run for three months.

Note: a previous version of this article included inaccurate information about the judge’s decision in the 2009 Vancouver case. This has been corrected.

Gabe Pollock is Editor-in-Chief and co-Publisher of Electric City Magazine. He is a Peterborough-born freelance writer and editor who has covered Peterborough music and culture since 2012, first on Electric City Live and now in its magaziney successor.

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